Israel’s Qualitative Military Edge: Legislative Background

A core component of Israel’s defense, defined by David Ben-Gurion, Israel’s first prime minister, in 1953, is maintaining a qualitative military edge over its regional adversaries. The United States has long been a partner of Israel in helping to maintain that edge. President Ronald Reagan was the first president to explicitly commit to Israel’s qualitative military edge—an assurance that every subsequent administration has repeated. The commitment to maintaining Israel’s qualitative military edge was only formally written into law in September 2008, with the passage of H.R. 7177, commonly known as “The Naval Vessel Transfer Act of 2008.”

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Passed Legislation

S.1356 – National Defense Authorization Act for Fiscal Year 2016 – Signed into law on November 5, 2015. Within the law several sections authorize military assistance to Israel, including:

(Sec. 1279) Authorizes DOD to carry out research, development, test, and evaluation jointly with Israel to establish anti-tunnel capabilities to detect, map, and neutralize underground tunnels that threaten the United States or Israel. Requires DOD, prior to carrying out the activities, to submit a report and certification to Congress regarding a memorandum of agreement between the United States and Israel addressing the sharing of costs, a framework for negotiating the rights to intellectual property developed, and reports on expenditures. Authorizes DOD to provide procurement, maintenance, and sustainment assistance to Israel in support of the anti-tunnel capabilities research, development, test, and evaluation activities authorized in this section if Israel matches the contribution. Requires DOD to designate a research and development entity of a military department as the lead agency in carrying out this section.

(Sec. 1678) Authorizes appropriations to be provided to Israel for the Iron Dome short-range rocket defense system. Requires the funds to be subject to the “Agreement Between the Department of Defense of the United States of America and the Ministry of Defense of the State of Israel Concerning Iron Dome Defense System Procurement.” Requires DOD to submit to Congress prior to obligating funds: (1) a certification that the Agreement is being successfully implemented, and (2) an assessment of risks relating to the implementation of the Agreement.

(Sec. 1679) Authorizes appropriations for procurement and coproduction of the Israeli David’s Sling Weapons System and the Arrow 3 Upper Tier missile defense system, subject to specified terms and conditions.

S.2673-The United States-Israel Strategic Partnership Act of 2014-Expresses the sense of Congress that Israel is a major U.S. strategic partner. The law clarifies U.S. policy and calls for the U.S. government to take several considerable actions to bolster Israel’s qualitative military advantage:

Carry out U.S.-Israel cooperative activities and to provide assistance for cooperation in the fields of energy, water, agriculture, and alternative fuel technologies.

Share and exchange with Israel research, technology, intelligence, information, equipment, and personnel that will advance U.S. national security interests

Enhance U.S.-Israel scientific cooperation.

Enter into cooperative research pilot programs with Israel to enhance Israel’s capabilities in border, maritime, and aviation security; explosives detection; and emergency services.

Provide Israel with defense articles and defense services, including missile and joint missile defense capabilities including Iron Dome, security and intelligence cooperation, and an expanded role for Israel with the NATO.

Require certification that a sale or export of major defense equipment to a country in the Middle East will not adversely affect Israel’s qualitative military edge.

Extend through September 30, 2024, the grant program to support U.S.-Israel research, development, and commercialization of renewable energy or energy efficiency.

S.2673, The United States-Israel Strategic Partnership Act of 2014, was signed into law on September 18, 2014.

H.R. 4310, the National Defense Authorization Act for Fiscal Year 2013, was made a law in early 2012. This law, following a recent Israel-Hamas conflict, further expressed the United States’ support for Israel attaining additional Iron Dome batteries. Consequentially, the legislation “urges the Department of Defense and the Department of State to explore with their Israeli counterparts and alert Congress of any requirements the Israeli Defense Force may have for additional Iron Dome batteries, interceptors, or other equipment.”

H.R. 4310, the National Defense Authorization Act for Fiscal Year 2013, was signed into law on January 1, 2013

S. 2165, the United States-Israel Enhanced Security Cooperation Act of 2012, was the pronouncement of a deep understanding between the two countries mutual security and stability concerns. Israel is the United States’ most significant security partner and America’s most valuable ally in the Middle East. Israel’s military strength and central geo-strategic location provide a strong deterrent against Iran, Syria and other radical forces opposed to the United States. As such, the legislation reaffirms the enduring commitment of the United States to Israel’s inherent right to self-defense by encouraging further cooperation between the two countries on matters of homeland security, missile defense, intelligence, and cyber-security.

On political and diplomatic issues, this law confirms America’s unwavering commitment to Israel’s existence as a Jewish state. As Section 3 of the law clarifies, it is the policy of the United States to veto any one-sided anti-Israel resolutions at the United Nations Security Council while encouraging Israel’s neighbors to recognize Israel’s inherent right to exist as a Jewish States. The United States government will also encourage further development of advanced technology programs between the two countries, and concurrently assist Israel in advancing a peaceful negotiated settlement to the Israeli-Palestinian conflict.

In support of this policy, the legislation further clarified U.S. policy and called for the U.S. government to take several considerable actions to bolster Israel’s qualitative military advantage:

Provide Israel support as necessary to increase development and production of joint missile defense systems

Provide assistance specifically for the production and procurement of the Iron Dome anti-missile defense system

S. 3847, the Security Cooperation Act of 2010, authorized the expedition of congressional reviews of defense exports to Israel. Following the amendment to the Arms Export Control Act (22 U.S.C. 2751 et seq.) in H.R. 7177, S. 3847 amended the Arms Export Control Act to include Israel in each provision relating to expedited arms sales. This law certified that Israel’s military purchases would be expedited in similar fashion as the North Atlantic Treaty Organization, any member country of such Organization, Japan, Australia, the Republic of Korea, and New Zealand.

S. 3847, the Security Cooperation Act of 2010, was signed into law on September 27, 2010

H.R. 7177—the Naval Vessel Transfer Act of 2008—succeeded in implementing Israel’s qualitative military edge as U.S. law. The legislation held several provisions outlining the government’s new responsibility to uphold Israel’s qualitative military edge.

Foremost, the government is required to oversee an empirical and qualitative assessment on an ongoing basis—which is set to be amended to biennially—“of the extent to which Israel possesses a qualitative military edge over military threats.” The United States is required to use this assessment when reviewing arms deals with foreign countries in according with the Arms Export Control Act (22 U.S.C. 2751 et seq.)

The Naval Vessel Transfer Act of 2008 also amended Section 36 of the Arms Export Control Act (22 U.S.C. 2776) by including the following provision:

“Certification Requirement Relating Israel’s Qualitative Military Edge—‘(1) IN GENERAL.—Any certification relating to a proposed sale or export of defense articles or defense services under this section to any country in the Middle East other than Israel shall include a determination that the sale or export of the defense articles or defense services will not adversely affect Israel’s qualitative military edge over military threats to Israel.’”

Additionally, the Resolution also defined “Qualitative Military Edge” in Section 205:

The term ‘‘qualitative military edge’’ means the ability to counter and defeat any credible conventional military threat from any individual state or possible coalition of states or from non-state actors, while sustaining minimal damages and casualties, through the use of superior military means, possessed in sufficient quantity, including weapons, command, control, communication, intelligence, surveillance, and reconnaissance capabilities that in their technical characteristics are superior in capability to those of such other individual or possible coalition of states or non-state actors.

H.R. 7177, the Naval Vessel Transfer Act of 2008, was signed into law on October 15, 2008

Present Legislation

In addition to the previously stated laws regarding the United States’ support of Israel’s qualitative military edge, there are several legislative pieces currently under review by the U.S. Congress and Senate to consider during the 113th Congressional session. Currently, the administration is working to increase security cooperation between the two countries to “unprecedented” levels, which is reflected in the legislation currently under review. As Barack Obama detailed, “America’s commitment and my commitment to Israel and Israel’s security is unshakable.”

S.2943 – National Defense Authorization Act for Fiscal Year 2017 – Passed both Houses of Congress on December 8, 2016. Within the law several sections authorize military assistance to Israel, including:

SEC. 1250. UNITED STATES-ISRAEL DIRECTED ENERGY COOPERATION.(a) Authority To Establish Directed Energy Capabilities Program With Israel.—(1) IN GENERAL.—The Secretary of Defense, upon the request of the Ministry of Defense of Israel, and with the concurrence of the Secretary of State, may carry out research, development, test, and evaluation activities, on a joint basis with Israel, to establish directed energy capabilities to detect and defeat ballistic missiles, cruise missiles, unmanned aerial vehicles, mortars, and improvised explosive devices that threaten the United States, deployed forces of the United States, or Israel. Any activities carried out pursuant to such authority shall be conducted in a manner that appropriately protects sensitive information and the national security interests of the United States and Israel. Continue reading “S.2943 – National Defense Authorization Act for Fiscal Year 2017” »

H.R. 1649, Partnering to Detect and Defeat Tunnels Act – The bill is designed to authorize the Secretary of Defense to enter into partnerships with Israel and other U.S. allies to develop technology to detect tunnels and for other purposes. The Secretary of Defense, coordinating with the Secretaries of State and Homeland Security, would be permitted to enter into an agreement with Israel to partner and coordinate in developing and deploying technologies to detect and counter tunnels, including by:

Carrying out operational testing of such technologies in both the United States and Israel.

Designating a military department or other DOD element as the lead federal agency for developing technology to detect and counter tunnels.

Having the Director of National Intelligence designate a senior intelligence officer to manage collection and analysis of intelligence regarding the tactical use of tunnels by state and non-state actors.

Having the Secretary of Defense submit a congressional report detailing instances of tunnels being used to attack the U.S. or allied installations, trends or developments in tunnel attacks throughout the world, technologies used, U.S. capabilities and plans to counter tactics.

Authorizing $5 million for research, development, test and evaluation, $8 million for research, development, test and evaluation in the DOD for the physical security program of the Combatting Terrorism Technical Support Office and $10 million for the Joint Improvised Explosive Device Defeat Fund for FY 2016.

Authorizes the President to carry out U.S.-Israel cooperative activities and to provide assistance for cooperation in the fields of energy, water, homeland security, agriculture, and alternative fuel technologies.

Amends the the Energy Independence and Security Act of 2007 to extend the grant program for U.S.-Israeli cooperation on research, development, and commercialization of renewable energy or energy efficiency.

Expresses the sense of Congress that the United States and Israel should increase cyber-security cooperation.

Urges the President to provide assistance for enhancement of the David’s Sling Weapon System, the joint United States-Israel Arrow Weapon System, and the Iron Dome short-range rocket defense system.

H.CON.RES. 30, recognizing the 65th anniversary of the independence of the State of Israel, was introduced on April 10, 2013. This resolution confirms America’s unwavering support for the Jewish State of Israel. The resolution praises the two nations’ strengthening relations on matters of defense, diplomacy, homeland security, and technology. In reaffirming the United States’ commitment to ensuring Israel maintains its qualitative military edge, the resolution also emphasizes the United States’ “unequivocal, enduring, and bipartisan support for the alliance and friendship between the United States and Israel.”

H.R. 1130, the Iron Dome Support Act, was introduced on March 13, 2013. This bill commends Israel’s use of the Iron Dome to avert escalating tension in the Middle East, as well as its high success rate. The bill acknowledges that the State of Israel remains under constant threat from missiles, rockets, and mortar shells from Hamas and Hezbollah.

This legislation will explicitly include Hamas and Hezbollah as non-state actors threatening Israel’s qualitative military edge. As a result:

“The United States remains committed to Israel’s qualitative military edge, including its advantage over non-state actors such as Hezbollah and Hamas, which boast increasingly sophisticated and powerful weapons as a result of support from Iran, Syria, and other state actors.”

The Iron Dome Support Act commends Israel’s Iron Dome anti-missile defense system’s impressive success rate in preventing massive Israeli civilian casualties, while also recognizing the system’s role in averting an escalation of Israeli operations during Operation Pillar of Defense. This bill, with Congressional and Senate approval, will affirm:

“The President, acting through the Secretary of Defense and the Secretary of State, is authorized to provide assistance, upon request by the Government of Israel, for the procurement, maintenance, enhancement, and sustainment of the Iron Dome defense system for purposes of intercepting short-range and medium-range rockets, missiles, and projectiles launched against Israel.”